LYNCH v. CHESNEY

November 21, 2005.

MARK W. LYNCH, Petitioner
v.
Superintendent CHESNEY, Respondent.

The opinion of the court was delivered by: JOHN JONES III, District Judge

ORDER

I. Background

Petitioner, Mark W. Lynch ("Petitioner" or "Lynch"), an inmate
presently incarcerated at the State Correctional Institution, in
Chester, Pennsylvania filed the above-captioned Petition for Writ
of Habeas Corpus ("Petition") pursuant to 28 U.S.C. § 2254. (Rec.
Doc. 1). Petitioner has paid the required filing fee. In
accordance with United States v. Miller, 197 F.3d 644 (3d Cir.
1999), and Mason v. Meyers, 208 F.3d 414 (3d Cir. 2000), an
Order was issued advising the Petitioner that: (1) he could have
the document ruled on as filed, that is, as a § 2254 Petition and
heard as such, but lose his ability to file a second or
successive petition absent certification by the court of appeals,
or (2) withdraw his petition and file one, all inclusive § 2254
Petition within the one-year statute of limitations period prescribed by
28 U.S.C. § 2244(d). (Rec. Doc. 3). Lynch responded by submitting a
Notice of Election on January 22, 2004, in which he opted to have
his Petition considered as filed. (Rec. Doc. 5). Thereafter, the
Court issued an Order to show cause, directing Respondent to
respond to the Petition. (Rec. Doc. 6). On March 25, 2004,
Respondent filed an answer to the Petition, and supporting
memorandum and exhibits. (Rec. Docs. 13-15). On May 21, 2004,
Petitioner filed a document entitled "amendment" to the Petition,
which the Court will construe as Petitioner's traverse. The
Petition is presently ripe for disposition and, for the reasons
that follow, will be denied.

A. Background

On May 17, 1999, while highly intoxicated, Lynch drove north in
the south-bound lanes of Interstate 83 in Harrisburg,
Pennsylvania, and collided head-on with James E. Dorothy. Dorothy
did not survive the accident.

On May 20, 1999, Lynch was arrested by the Pennsylvania State
Police and charged with Homicide by Vehicle While Driving Under
the Influence, in violation of 75 Pa.C.S.A. § 3735(a), Homicide
by Vehicle, in violation of 75 Pa.C.S.A. § 3732, Involuntary
Manslaughter, in violation of 18 Pa.C.S.A. § 2504(a), Driving
Under the Influence of Alcohol, in violation of
18 Pa.C.S.A. §§ 3731(a)(1), (4)(i) and several summary offenses.*fn1 On March 6, 2000, Lynch pled guilty to
all charges. (Rec. Doc. 15, Ex. A, Notes of Testimony of Guilty
Plea).

On April 27, 2000, Lynch was sentenced to a term of
imprisonment of five to ten years on the Homicide by Vehicle
While DUI charge, a consecutive term of imprisonment of two to
five years on the Involuntary Manslaughter charge, lifetime
suspension of driving privileges, restitution in the amount of
$19,180.41, court costs and standard fines on the summary
offenses. (Rec. Doc. 15, Ex. B, Notes of Testimony of
Sentencing). By Order of April 27, 2000, the trial court, sua
sponte, vacated the sentence as an illegal sentence, holding
that "the trial court is unable to impose consecutive sentences
since the charge of involuntary manslaughter merges by law with
homicide by vehicle while driving under the influence." (Rec.
Doc. 15, Ex. D, Order). Thus, the Court vacated the consecutive
sentence of two to five years, leaving a sentence of five to ten
years. Id. On May 2, 2000, the Commonwealth filed a Petition for
Reconsideration of the Sentence, pointing out that pursuant to
Commonwealth v. Neupert, 684 A.2d 627 (Pa.Super. 1996),
Homicide by Vehicle does not merge with Homicide by Vehicle While
DUI for sentencing purposes. (Rec. Doc. 15, Ex. E, Motion for
Reconsideration). On May 8, 2000, Lynch filed an Answer to the
Commonwealth's Petition for Reconsideration of Sentence,
averring, inter alia, that there was a negotiated plea
agreement under which the sentence would be no less than the
mandatory minimum and the Commonwealth would not object to any
sentence imposed by the trial court. (Rec. Doc. 15, Ex. F,
Answer).

On June 7, 2000, the trial court vacated its finding that the
charges of Homicide by Vehicle and Homicide by Vehicle while DUI
merge and reimposed the consecutive sentence of two to five years
imprisonment. (Rec. Doc. 15, Ex. G, Order). Lynch did not file a
direct appeal from the judgment of sentence.

On March 12, 2001, Lynch filed a pro se Motion to Enforce Plea
Agreement. (Rec. Doc. 15, Ex. H). By Order dated March 15, 2001,
the trial court construed the Motion to Enforce Plea Agreement as
a petition for relief under the Pennsylvania's Post Conviction Relief Act (PCRA),*fn2 appointed counsel to
represent Lynch, and granted leave to file a supplemental PCRA
petition. (Rec. Doc. 15, Ex. I). On June 12, 2001, Lynch, through
appointed counsel, filed a Supplemental Petition under the PCRA,
in which he claims trial counsel was ineffective and/or
unlawfully induced petitioner to plead guilty for the following
reasons:

(1) Petitioner's pro se Motion to Enforce Plea
Agreement demonstrates petitioner was acting under
the assumption that he would plead guilty in exchange
for a certain consideration from the Commonwealth.
Specifically, Petitioner claims the Commonwealth,
pursuant to a negotiated plea agreement, agreed not
to recommend or object to any sentence which the
Court may impose if said sentence did not fall below
the mandatory minimum sentence of three (3) years of
incarceration on the charge of Homicide by Vehicle
While DUI.

(2) Undersigned counsel has carefully reviewed the
record of defendant's case, the written guilty plea
colloquy signed by petitioner and the sentencing
guidelines executed by Your Honorable Court and has
failed to discover any mention of a plea agreement
offered by the Commonwealth. However, undersigned
counsel notes that Attorney Krevsky's final averment
in his Answer to Commonwealth Petition for
Reconsideration of Sentence makes specific mention of
the existence of a negotiated plea agreement which he
alleges was violated by the Commonwealth.

(3) Assuming, arguendo, a negotiated plea agreement
did not exist, it would certainly appear Attorney
Krevsky had indicated to petitioner that an agreement
did exist. (4) Assuming, arguendo, a plea agreement did
exist, it would appear that Commonwealth violated
same when, at sentencing, Mrs. Dorothy and Mr.
Dorothy (unidentified speaker) testified at
defendant's sentencing "I would really appreciate if
the Court would keep this man in jail for a
considerable amount of time" and "The maximum
sentence is what I would ask the Court to put forth
in this individual". [Notes from Transcript of
Sentencing, p. 5-6, lis. 19-20 and lis. 11-13].

(5) Assuming, arguendo, a plea agreement did
exist, it was violated when the District Attorney's
final averment in its petition for reconsideration of
sentence calling for a harsher sentence than five (5)
to ten (10) years certainly recommends a sentence
above and beyond the three year mandatory minimum.

Rec. Doc. 15, Ex. J, Supplemental Petition.

On November 2, 2001, the trial court, sitting as the PCRA
Court, conducted an evidentiary hearing on Lynch's PCRA petition.
(Rec. Doc. 15, Ex. C, Notes of Testimony of PCRA Hearing). At the
end of the hearing, the Court denied the petition. Id. On
December 13, 2001, Lynch filed a Motion to Reduce Judgment to
Order or Final Decree. (Rec. Doc. 15, Ex. K). On December 20,
2001, the PCRA court issued a written Order denying the PCRA
petition. (Rec. Doc. 15, Ex. L). A written Opinion relating to
the denial of the PCRA petition was issued on February 20, 2002.
(Rec. Doc. 15, Ex. M). In addressing the claims raised by
Petitioner, the PCRA Court found as follows: We find first hand that before the defendant pled
guilty on March 6, 2000, there was never any plea
agreement in existence between the defendant and the
Commonwealth. In support of this conclusion, we have
to look no further than the record of testimony at
the defendant's PCRA hearing. The former prosecutor
in this case first testified that no agreement
existed. (Notes from various hearings hereinafter
referred to as "PCRA" 12, "Guilty Plea", or
"Sentencing"). He testified that it was customary of
the District Attorney's Office, which remains
unchanged, that when plea agreements are
contemplated, the agreement must be signed and
approved by the District Attorney. (PCRA 12).
Thereafter, the court is notified of the agreement
and the presiding judge either approves or
disapproves. (PCRA 12). Here, the former prosecutor
testified there was no written or oral plea
agreement. (PCRA 19). In addition, no plea agreement
was ever communicated to this Court for approval.

The defendant's trial counsel testified to the
absence of a plea agreement. Trial counsel admits
engaging in conversations with the Commonwealth, and
that the latter would not recommend a sentence, nor
object to any sentence this Court imposed provided
that the Court issue the mandatory minimum sentence
on the Homicide by Vehicle while DUI offense. (PCRA
27). However, we are not persuaded that these
conversations amounted to a formal plea agreement. If
an agreement was reached, it was never reduced to
writing. Furthermore, if an agreement had been
reached, it was never communicated to the Court as
required by law.*fn3 After reviewing the
testimony presented and the record as a whole, we
find that no plea agreement ever existed between the
defendant and the Commonwealth.

Consequently, we do not accept as true that trial
counsel relied on an illusory plea agreement. We
reach this conclusion because the record does not indicate, from either testimony of the
former prosecutor or trial counsel that the former
negotiated a plea in return for not recommending more
than the minimum sentence. The Commonwealth was
merely aware that the defendant was going to plead
before the Court and that the Commonwealth had
planned to recommend at least a minimum three year
sentence be imposed. (PCRA 19). In the Court's
opinion, this certainly does not indicate an illusory
promise by the Commonwealth. We cannot discern any
evidence that trial counsel ever relied on any
illusory promises made by the District Attorney. It
is this Court's impression at no time did trial
counsel ever state to the defendant that he would
only receive the mandatory minimum sentence based on
illusory statements from the District Attorney. This
court initially entered its intended aggregate
sentence of seven (7) to fifteen (15) years. We then
corrected that which was entered illegally due to the
merger doctrine. The Commonwealth, in its motion to
modify, did not object to the Court's sentence, they
merely advised as to the means by which the Court
could impose its initially intended sentencing
scheme. The record at sentencing bears out the
Court's inquiry to both counsel on the issues of
merger, to which neither counsel could accurately
advise the Court at that time. Consequently, we
cannot find that the Commonwealth breached their
position.

In concluding that no agreement existed, the Court then
determined whether counsel made unwarranted representations to
Petitioner, thereby inducing him into pleading guilty:

Having determined there was never any specific plea
agreement at the time in the case, and that trial
counsel never relied on an illusory promise by the
Commonwealth, we turn to the defendant's claim that
his trial counsel induced him into pleading guilty with the
assurance that he would receive only three to six
years of incarceration. We analyze this claim while
accepting the Commonwealth's assertion that, under
the PCRA, "A plead of guilty is unlawfully induced
where the circumstances make it likely that the
inducement caused the petitioner to plead guilty and
the petitioner is innocent."
42 Pa. C.S.A. § 9543(a)(2)(iii).

The defendant admitted that he never intended to
conceal his guilt in any way. (PCRA 34). The
defendant stated he expected only to serve a sentence
of three to six years. (PCRA 33 & 34). However, at
his guilty plea, he admitted reviewing the written
Guilty Plea Colloquy with trial counsel, which leads
the Court to believe his plea was knowing and
voluntary. (Guilty Plea 5). Likewise, he admitted
knowledge that the charge of Homicide by Vehicle
while DUI carried a minimum sentence of three years,
but that the Court was free to impose a higher
minimum sentence. (Guilty Plea 6). Finally, the
defendant never made a claim that he was innocent.

The defendant also averred that trial counsel
represented to him that counsel had somewhat of a
relationship with the Court, which apparently would
result in defendant receiving a lesser sentence than
the one we imposed. We find this claim patently void
of merit. We find, at no time, did trial counsel make
unwarranted representations to the defendant that he
would receive a certain sentence based on a
relationship with the Court or with the Commonwealth.
As a result, we find that trial counsel did not
unlawfully induce the defendant into accepting an
agreement specifying that he would receive three to
six years incarceration.

Id.

On January 11, 2002, Lynch filed a notice of appeal to the
Pennsylvania Superior Court. He raised the following grounds for
relief:

1. Whether guilty plea counsel unlawfully induced
petitioner to plead guilty relying on an illusory
plea agreement where the Commonwealth's attorney would have no objection
to the sentence the lower court imposed so long as
the mandatory minimum provisions of
75 Pa.C.S.A. § 3735 were applied?

3. Whether, assuming, arguendo, a plea agreement
did exist that the Commonwealth's attorney would have
no objection to any sentence imposed by the lower
court so long as the mandatory minimum provisions of
75 Pa.C.S.A. § 3735 were imposed, the Commonwealth's
attorney violated same by allowing the victim's
family to testify at petitioner's sentencing and
request "I would really appreciate if the court would
keep this man in jail for a considerable amount of
time" and "the maximum sentence is what I would ask
the court to put forth on this individual"?

&nbsp; On March 19, 2003, the Pennsylvania Superior Court affirmed the
trial court's denial of Lynch's PCRA petition. Commonwealth v.
Lynch, 820 A.2d 728 (Pa.Super.), alloc. denied,
835 A.2d 709 (Pa. 2003) (table); Rec. Doc. 15, Ex. Q, Opinion of
Pennsylvania Superior Court. The Superior Court found that the
record adequately supported the PCRA Court's findings, that there
was no plea agreement, and that Petitioner's counsel was effective because he made no unwarranted
representations. Id. In doing so, the Pennsylvania Superior
Court held the following:

To establish a claim of ineffective assistance of
counsel, a defendant must demonstrate three things:
that the underlying claim has arguable merit, that
counsel's performance was not reasonably designed to
effectuate the defendant's interests, and that
counsel's performance was not reasonably designed to
effectuate the defendant's interests, and that
counsel's unreasonable performance prejudiced the
defendant. Commonwealth v. Heggins,
2002 Pa. Super 297, ¶ 13 (filed September 1, 2002). "[T]he
voluntariness of [the] plea depends on whether
counsel's advice was within the range of competence
demanded of attorneys in criminal cases." Hickman,
799 A.2d 141 (Internal quotation marks and citation
omitted).

At the PCRA hearing, trial counsel testified that he
understood that so long as the sentence was at least
the mandatory minimum sentence, the Commonwealth
would not object. He testified:

I would have told him exactly what I just said now:
that the Commonwealth would not go off the mandatory,
but it is my understanding that the Judge, whatever
the Judge would impose, if it was at least the
mandatory, that the Commonwealth would not object.

N.T. PCRA Hearing, 11/2/01, at 29. That statement
makes no promise of a sentence, nor asserts that any
agreement existed. Rather, it merely states counsel's
understanding as to what would happen if Lynch pled
guilty. The trial court believed this statement ...

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